COVID-19 and Reasonable Notice Calculations – The State of Affairs at the End of May 2021

It is the end of May 2021. The COVID-19 pandemic has been a reality for approximately 15 months in Ontario. The legal system has changed in ways seemingly unimaginable at the end of 2019: Appearances for scheduling matters by video rather than in-person attendance? Remote commissioning of affidavits? Full blown hearings by video conference? Service of documents by email rather than the beloved fax?! The procedural elements of the legal landscape of 2021 are practically unrecognizable from what it was a year and a half ago.

So what of the substantive law of wrongful dismissal and the calculation of reasonable notice?

Since the pandemic was declared, plaintiffs’ counsel has advanced the position that the disruption associated with same means an automatic extension of the reasonable notice period due to dismissed employees. But has the judiciary agreed?

The Judicial Consideration of Porky Pig

I appreciate that I have not blogged very much in 2021. To say this year has been “busy” in the employment bar might be a touch of an understatement. However, it would appear that notwithstanding the paucity of new posts, some of you are still using this blog as a resource.

In Lamontagne v. J.L. Richards & Associates Limited, 2021 ONSC 2133 (CanLII), the Honourable Justice Pierre E. Roger of the Ontario Superior Court sitting at Ottawa referenced me and one of my oft-used phrases to resolve a perennial favourite question of the employment-law bar – “is this termination provision legal?”

So with reference to the meme above this is a post about a decision which referenced this blog.

Ottawa Judge Awards $50,000 in Punitive Damages after Employer Fails to Provide Statutory Minimums and ROE

Is asserting just cause for termination where it is not warranted, failing to provide an employee with his Record of Employment (ROE), and/or his statutory minimums, all in an attempt to negotiate a lower severance amount, “reprehensible” conduct warranting the imposition of punitive damages? It is according to a decision of the Honourable Justice Pierre Roger of the Ontario Superior Court of Justice sitting at Ottawa: Morison v Ergo-Industrial Seating Systems Inc., 2016 ONSC 6725.

In a wrongful dismissal case in which the court was unable to award aggravated damages for bad faith on account of a dearth of medical evidence, Justice Roger nonetheless awarded $50,000 in punitive damages for “bad faith.”

Things may have just gotten easier for plaintiffs.